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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of the practice of construction and |
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program management for capital improvement projects of |
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governmental entities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 8, Occupations Code, is amended by adding |
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Chapter 1306 to read as follows: |
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CHAPTER 1306. GOVERNMENTAL ENTITY CONSTRUCTION MANAGER-AGENTS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 1306.001. DEFINITIONS. In this chapter: |
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(1) "Commission" means the Texas Commission of |
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Licensing and Regulation. |
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(2) "Construction and program management" means the |
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management of the planning, design, and construction of a capital |
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improvement project or a program of capital improvement projects, |
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including project scope development, land acquisition, permitting, |
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cash-flow management, design acquisition and management, |
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recommendation of quality construction methods that are within the |
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client's budget, cost estimation, the writing of bid packages, cost |
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control, time and quality management, contract administration, |
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risk management, and dispute avoidance and resolution. |
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(3) "Department" means the Texas Department of |
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Licensing and Regulation. |
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(4) "Executive director" means the executive director |
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of the department. |
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(5) "Governmental entity construction manager-agent" |
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means a person registered to engage in the practice of construction |
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and program management for a governmental entity in this state on: |
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(A) a capital improvement project; or |
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(B) a program of capital improvement projects. |
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Sec. 1306.002. APPLICABILITY OF CHAPTER. This chapter |
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applies to a governmental entity or quasi-governmental entity |
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authorized by state law to enter into a public works contract, |
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including: |
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(1) a state agency as defined by Section 2151.002, |
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Government Code, including the Texas Facilities Commission; |
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(2) a local government, including: |
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(A) a county; |
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(B) a municipality; |
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(C) a school district; |
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(D) any other special district or authority, |
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including a hospital district, a defense base development authority |
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established under Chapter 379B, Local Government Code, an airport |
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board or authority, a conservation and reclamation district, |
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including a river authority, and any other type of water district; |
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and |
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(E) any other political subdivision of this |
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state; |
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(3) a public junior college as defined by Section |
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61.003, Education Code; |
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(4) any entity owned by a municipality; and |
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(5) any other entity that owns or operates a facility |
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for the benefit of a municipality or county. |
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Sec. 1306.003. EXEMPTION. (a) This chapter does not apply |
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to: |
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(1) a contract entered into by the Texas Department of |
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Transportation; or |
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(2) a professional architect or professional engineer |
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licensed in good standing in this state subject to Subsection (b). |
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(b) A professional architect or professional engineer who |
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is licensed in this state and is providing construction or program |
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management services as a construction manager-agent to a |
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governmental entity must comply with Section 1306.055. |
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[Sections 1306.004-1306.050 reserved for expansion] |
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SUBCHAPTER B. REGISTRATION REQUIREMENTS |
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Sec. 1306.051. REGISTRATION REQUIRED. A person may not |
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engage in the practice of construction and program management as a |
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construction manager-agent for a governmental entity in this state |
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unless the person holds a certificate of registration issued under |
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this chapter. |
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Sec. 1306.052. REGISTRATION APPLICATION; FEE. An applicant |
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for registration under this chapter must: |
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(1) submit an application on a form prescribed by the |
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executive director; and |
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(2) pay the application fee set by the commission. |
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Sec. 1306.053. ELIGIBILITY FOR REGISTRATION. To be |
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eligible for registration as a governmental entity construction |
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manager-agent, an applicant must: |
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(1) be certified by a national construction and |
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program management organization recognized by the executive |
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director; |
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(2) submit to the department the names and addresses |
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of five governmental entity clients for which the applicant served |
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as a construction manager to verify that the applicant has at least |
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10 years' experience in the field of construction and program |
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management; or |
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(3) hold: |
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(A) a bachelor's or graduate degree in |
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construction management, architecture, engineering, or |
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construction science and have at least five years of verified |
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experience in construction and program management for governmental |
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entities; or |
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(B) an associate's degree or certificate in |
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construction management, architecture, engineering, or |
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construction science and have at least seven years of verified |
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experience in construction and program management for governmental |
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entities. |
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Sec. 1306.054. ISSUANCE OF CERTIFICATE OF REGISTRATION. |
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The executive director shall issue a certificate of registration to |
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an applicant who qualifies for registration. |
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Sec. 1306.055. REQUIRED INSURANCE. A holder of a |
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certificate of registration under this chapter or the firm |
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employing the person must maintain professional liability |
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insurance in the amount of at least $1 million for each occurrence. |
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Sec. 1306.056. TERM OF CERTIFICATE OF REGISTRATION. A |
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certificate of registration is valid for a term established by the |
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executive director. |
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[Sections 1306.057-1306.100 reserved for expansion] |
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SUBCHAPTER C. RENEWAL OF CERTIFICATE OF REGISTRATION |
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Sec. 1306.101. PROCEDURE FOR RENEWAL. (a) A person who is |
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otherwise eligible to renew a certificate of registration may renew |
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an unexpired certificate by paying the required renewal fee to the |
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department before the expiration date of the certificate. A person |
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whose certificate has expired may not engage in activities that |
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require a certificate until the certificate has been renewed. |
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(b) A person whose certificate has been expired for 90 days |
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or less may renew the certificate by paying to the department a |
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renewal fee that is equal to 1-1/2 times the normally required |
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renewal fee. |
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(c) A person whose certificate has been expired for more |
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than 90 days but less than one year may renew the certificate by |
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paying to the department a renewal fee that is equal to two times |
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the normally required renewal fee. |
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(d) A person whose certificate has been expired for one year |
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or more may not renew the certificate. The person may obtain a new |
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certificate by complying with the requirements and procedures for |
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an original certificate. |
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SECTION 2. Section 44.031, Education Code, is amended by |
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adding Subsection (f-1) to read as follows: |
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(f-1) A school district may contract for professional |
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services rendered by a construction manager-agent in the manner |
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|
provided by Section 2254.004, Government Code, in lieu of complying |
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with the methods provided by this section. |
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SECTION 3. Section 44.037, Education Code, is amended by |
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amending Subsections (a), (b), (c), and (e) and adding Subsections |
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(b-1) and (b-2) to read as follows: |
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(a) A school district may use the construction |
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manager-agent method for the construction, rehabilitation, |
|
|
alteration, or repair of a facility in a construction project or a |
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program of multiple construction projects. In using that method |
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and in entering into a contract for the services of a construction |
|
|
manager-agent, a district shall follow the procedures prescribed by |
|
|
this section. |
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(b) A construction manager-agent is a sole proprietorship, |
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partnership, corporation, or other legal entity that complies with |
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Chapter 1306, Occupations Code, and that provides consultation to |
|
|
the school district regarding construction, rehabilitation, |
|
|
alteration, or repair of the facility. A district using the |
|
|
construction manager-agent method may, under the contract between |
|
|
the district and the construction manager-agent, require the |
|
|
construction manager-agent to provide: |
|
|
(1) any service defined as construction and program |
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|
management under Section 1306.001, Occupations Code; |
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|
(2) administrative personnel; |
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(3) [,] equipment necessary to perform duties under |
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|
this section;[,] and |
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(4) on-site management and other services specified in |
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|
the contract. |
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(b-1) A construction manager-agent represents the district |
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in a fiduciary capacity. A construction manager-agent is not a |
|
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contractor. A school district may not require a construction |
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manager-agent to provide performance and payment bonds. |
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(b-2) A construction manager-agent may not: |
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|
(1) perform any aspect of the construction, |
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|
rehabilitation, alteration, or repair of the facility; |
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|
(2) be a party to a construction subcontract for the |
|
|
construction, rehabilitation, alteration, or repair of the |
|
|
facility; or |
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|
(3) provide project bonding for the construction, |
|
|
rehabilitation, alteration, or repair of the facility. |
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(c) The [Before or concurrently with selecting a
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construction manager-agent, the] district shall select or |
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|
designate an engineer or architect who shall prepare the |
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|
construction documents for the project and who has full |
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|
responsibility for complying with Chapter 1001 or 1051, Occupations |
|
|
Code, as applicable. If the engineer or architect is not a |
|
|
full-time employee of the district, the district shall select the |
|
|
engineer or architect on the basis of demonstrated competence and |
|
|
qualifications as provided by Section 2254.004, Government Code. |
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The district's engineer or architect may not serve, alone or in |
|
|
combination with another person, as the construction manager-agent |
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unless the engineer or architect is hired to serve as the |
|
|
construction manager-agent under a separate or concurrent |
|
|
procurement conducted in accordance with this subchapter. This |
|
|
subsection does not prohibit the district's engineer or architect |
|
|
from providing customary construction phase services under the |
|
|
engineer's or architect's original professional service agreement |
|
|
in accordance with applicable licensing laws. |
|
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(e) A district using the construction manager-agent method |
|
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shall procure, in accordance with applicable law and in any manner |
|
|
authorized by this chapter, a general contractor, trade |
|
|
contractors, or subcontractors who: |
|
|
(1) will serve as the prime contractor for their |
|
|
specific portion of the work; and |
|
|
(2) will provide performance and payment bonds to the |
|
|
district in accordance with applicable law. |
|
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SECTION 4. Section 51.781, Education Code, is amended by |
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amending Subsections (a), (b), (c), and (e) and adding Subsections |
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|
(b-1) and (b-2) to read as follows: |
|
|
(a) An institution may use the construction manager-agent |
|
|
method for the construction, rehabilitation, alteration, or repair |
|
|
of a facility in a construction project or a program of multiple |
|
|
construction projects. In using that method and in entering into a |
|
|
contract for the services of a construction manager-agent, a board |
|
|
shall follow the procedures prescribed by this section. |
|
|
(b) A construction manager-agent is a sole proprietorship, |
|
|
partnership, corporation, or other legal entity that complies with |
|
|
Chapter 1306, Occupations Code, and that provides consultation to |
|
|
the institution regarding construction, rehabilitation, |
|
|
alteration, or repair of the facility. An institution using the |
|
|
construction manager-agent method may, under the contract between |
|
|
the institution and the construction manager-agent, require the |
|
|
construction manager-agent to provide: |
|
|
(1) any service defined as construction and program |
|
|
management under Section 1306.001, Occupations Code; |
|
|
(2) administrative personnel; |
|
|
(3) [,] equipment necessary to perform duties under |
|
|
this section;[,] and |
|
|
(4) on-site management and other services specified in |
|
|
the contract. |
|
|
(b-1) A construction manager-agent represents the |
|
|
institution in a fiduciary capacity. A construction manager-agent |
|
|
is not a contractor. A board may not require a construction |
|
|
manager-agent to provide performance and payment bonds. |
|
|
(b-2) A construction manager-agent may not: |
|
|
(1) perform any aspect of the construction, |
|
|
rehabilitation, alteration, or repair of the facility; |
|
|
(2) be a party to a construction subcontract for the |
|
|
construction, rehabilitation, alteration, or repair of the |
|
|
facility; or |
|
|
(3) provide project bonding for the construction, |
|
|
rehabilitation, alteration, or repair of the facility. |
|
|
(c) The [Before or concurrently with selecting a
|
|
|
construction manager-agent, the] board shall select or designate an |
|
|
engineer or architect who shall prepare the construction documents |
|
|
for the project and who has full responsibility for complying with |
|
|
Chapter 1001 or 1051, Occupations Code, as applicable. If the |
|
|
engineer or architect is not a full-time employee of the |
|
|
institution, the board shall select the engineer or architect on |
|
|
the basis of demonstrated competence and qualifications as provided |
|
|
by Section 2254.004, Government Code. The institution's engineer |
|
|
or architect may not serve, alone or in combination with another |
|
|
person, as the construction manager-agent unless the engineer or |
|
|
architect is hired to serve as the construction manager-agent under |
|
|
a separate or concurrent procurement conducted in accordance with |
|
|
this subchapter. This subsection does not prohibit the |
|
|
institution's engineer or architect from providing customary |
|
|
construction phase services under the engineer's or architect's |
|
|
original professional service agreement in accordance with |
|
|
applicable licensing laws. |
|
|
(e) A board using the construction manager-agent method |
|
|
shall procure, in accordance with applicable law and in any manner |
|
|
authorized by this chapter, a general contractor, trade |
|
|
contractors, or subcontractors who: |
|
|
(1) will serve as the prime contractor for their |
|
|
specific portion of the work; and |
|
|
(2) will provide performance and payment bonds to the |
|
|
institution in accordance with applicable law. |
|
|
SECTION 5. Section 2166.2535, Government Code, is amended |
|
|
by amending Subsections (a), (b), (c), and (e) and adding |
|
|
Subsections (b-1) and (b-2) to read as follows: |
|
|
(a) The commission may use the construction manager-agent |
|
|
method for a project or a program of multiple projects. In using |
|
|
that method and in entering into a contract for the services of a |
|
|
construction manager-agent, the commission shall follow the |
|
|
procedures prescribed by this section. |
|
|
(b) A construction manager-agent is a sole proprietorship, |
|
|
partnership, corporation, or other legal entity that complies with |
|
|
Chapter 1306, Occupations Code, and that provides consultation to |
|
|
the commission regarding construction, rehabilitation, alteration, |
|
|
or repair of a facility. The commission, when using the |
|
|
construction manager-agent method, may, under the contract between |
|
|
the commission and the construction manager-agent, require the |
|
|
construction manager-agent to provide: |
|
|
(1) any service defined as construction and program |
|
|
management under Section 1306.001, Occupations Code; |
|
|
(2) administrative personnel; |
|
|
(3) [,] equipment necessary to perform duties under |
|
|
this section;[,] and |
|
|
(4) on-site management and other services specified in |
|
|
the contract. |
|
|
(b-1) A construction manager-agent represents the |
|
|
commission in a fiduciary capacity. A construction manager-agent |
|
|
is not a contractor. The commission may not require a construction |
|
|
manager-agent to provide performance and payment bonds. |
|
|
(b-2) A construction manager-agent may not: |
|
|
(1) perform any aspect of the construction, |
|
|
rehabilitation, alteration, or repair of the facility; |
|
|
(2) be a party to a construction subcontract for the |
|
|
construction, rehabilitation, alteration, or repair of the |
|
|
facility; or |
|
|
(3) provide project bonding for the construction, |
|
|
rehabilitation, alteration, or repair of the facility. |
|
|
(c) The [Before or concurrently with selecting a
|
|
|
construction manager-agent, the] commission shall select or |
|
|
designate an engineer or architect who shall prepare the |
|
|
construction documents for the project and who has full |
|
|
responsibility for complying with Chapter 1001 or 1051, Occupations |
|
|
Code, as applicable. If the engineer or architect is not a |
|
|
full-time employee of the commission, the commission shall select |
|
|
the engineer or architect on the basis of demonstrated competence |
|
|
and qualifications as provided by Section 2254.004. A commission |
|
|
engineer or architect may not serve, alone or in combination with |
|
|
another person, as the construction manager-agent unless the |
|
|
engineer or architect is hired to serve as the construction |
|
|
manager-agent under a separate or concurrent procurement conducted |
|
|
in accordance with this subchapter. This subsection does not |
|
|
prohibit a commission engineer or architect from providing |
|
|
customary construction phase services under the engineer's or |
|
|
architect's original professional service agreement in accordance |
|
|
with applicable licensing laws. |
|
|
(e) When using the construction manager-agent method, the |
|
|
commission shall procure, in accordance with applicable law and in |
|
|
any manner authorized by this chapter, a general contractor, trade |
|
|
contractors, or subcontractors who: |
|
|
(1) will serve as the prime contractor for their |
|
|
specific portion of the work; and |
|
|
(2) will provide performance and payment bonds to the |
|
|
commission in accordance with applicable law. |
|
|
SECTION 6. Section 271.117, Local Government Code, is |
|
|
amended by amending Subsections (a), (b), (c), (d), and (e) and |
|
|
adding Subsections (b-1) and (b-2) to read as follows: |
|
|
(a) A governmental entity may use the construction |
|
|
manager-agent method for the construction, rehabilitation, |
|
|
alteration, or repair of a facility in a construction project or a |
|
|
program of multiple construction projects. In using that method |
|
|
and in entering into a contract for the services of a construction |
|
|
manager-agent, a governmental entity shall follow the procedures |
|
|
prescribed by this section. |
|
|
(b) A construction manager-agent is a sole proprietorship, |
|
|
partnership, corporation, or other legal entity that complies with |
|
|
Chapter 1306, Occupations Code, and that provides consultation to |
|
|
the governmental entity regarding construction, rehabilitation, |
|
|
alteration, or repair of the facility. A governmental entity using |
|
|
the construction manager-agent method may, under the contract |
|
|
between the governmental entity and the construction |
|
|
manager-agent, require the construction manager-agent to provide: |
|
|
(1) any service defined as construction and program |
|
|
management under Section 1306.001, Occupations Code; |
|
|
(2) administrative personnel; |
|
|
(3) [,] equipment necessary to perform duties under |
|
|
this section;[,] and |
|
|
(4) on-site management and other services specified in |
|
|
the contract. |
|
|
(b-1) A construction manager-agent represents the |
|
|
governmental entity in a fiduciary capacity. A construction |
|
|
manager-agent is not a contractor. A governmental entity may not |
|
|
require a construction manager-agent to provide performance and |
|
|
payment bonds. |
|
|
(b-2) A construction manager-agent may not: |
|
|
(1) perform any aspect of the construction, |
|
|
rehabilitation, alteration, or repair of the facility; |
|
|
(2) be a party to a construction subcontract for the |
|
|
construction, rehabilitation, alteration, or repair of the |
|
|
facility; or |
|
|
(3) provide project bonding for the construction, |
|
|
rehabilitation, alteration, or repair of the facility. |
|
|
(c) The [Before or concurrently with selecting a
|
|
|
construction manager-agent, the] governmental entity shall select |
|
|
or designate an engineer or architect who shall prepare the |
|
|
construction documents for the project and who has full |
|
|
responsibility for complying with Chapter 1001 or 1051, Occupations |
|
|
Code, as applicable. If the engineer or architect is not a |
|
|
full-time employee of the governmental entity, the governmental |
|
|
entity shall select the engineer or architect on the basis of |
|
|
demonstrated competence and qualifications as provided by Section |
|
|
2254.004, Government Code. The governmental entity's engineer or |
|
|
architect may not serve, alone or in combination with another |
|
|
person, as the construction manager-agent unless the engineer or |
|
|
architect is hired to serve as the construction manager-agent under |
|
|
a separate or concurrent procurement conducted in accordance with |
|
|
this subchapter. This subsection does not prohibit the |
|
|
governmental entity's engineer or architect from providing |
|
|
customary construction phase services under the engineer's or |
|
|
architect's original professional service agreement in accordance |
|
|
with applicable licensing laws. |
|
|
(d) A governmental entity shall select a construction |
|
|
manager-agent on the basis of demonstrated competence and |
|
|
qualifications in the same manner as provided for the selection of |
|
|
engineers or architects under Section 2254.004, Government Code[,
|
|
|
except that notice must be published as provided by Section
|
|
|
271.112(d)]. |
|
|
(e) A governmental entity using the construction |
|
|
manager-agent method shall procure, in accordance with applicable |
|
|
law, a general contractor, trade contractors, or subcontractors |
|
|
who: |
|
|
(1) will serve as the prime contractor for their |
|
|
specific portion of the work; and |
|
|
(2) will provide performance and payment bonds to the |
|
|
governmental entity in accordance with applicable law. |
|
|
SECTION 7. Section 60.461, Water Code, is amended by |
|
|
amending Subsections (a), (b), (c), and (e) and adding Subsections |
|
|
(b-1) and (b-2) to read as follows: |
|
|
(a) A district may award a contract to a construction |
|
|
manager-agent for the construction, rehabilitation, alteration, or |
|
|
repair of a facility in a construction project or a program of |
|
|
multiple construction projects if [provided that] the construction |
|
|
manager-agent and the district comply with Chapter 1306, |
|
|
Occupations Code, and follow the procedures prescribed by this |
|
|
section. |
|
|
(b) A district may, under the contract between the district |
|
|
and the construction manager-agent, require the construction |
|
|
manager-agent to provide: |
|
|
(1) any service defined as construction and program |
|
|
management under Section 1306.001, Occupations Code; |
|
|
(2) administrative personnel; |
|
|
(3) [,] equipment necessary to perform duties under |
|
|
this section;[,] and |
|
|
(4) on-site management and other services specified in |
|
|
the contract. |
|
|
(b-1) A construction manager-agent represents the district |
|
|
in a fiduciary capacity. A construction manager-agent is not a |
|
|
contractor. A district may not require a construction |
|
|
manager-agent to provide performance and payment bonds. |
|
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(b-2) A construction manager-agent may not: |
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(1) perform any aspect of the construction, |
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rehabilitation, alteration, or repair of the facility; |
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|
(2) be a party to a construction subcontract for the |
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|
construction, rehabilitation, alteration, or repair of the |
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|
facility; or |
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|
(3) provide project bonding for the construction, |
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|
rehabilitation, alteration, or repair of the facility. |
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|
(c) The [Before or concurrently with selecting a
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|
construction manager-agent, the] district shall select or |
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|
designate an engineer or architect who shall prepare the |
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|
construction documents for the project and who has full |
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|
responsibility for complying with Chapter 1001 or 1051, Occupations |
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|
Code, as applicable. If the engineer or architect is not a |
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|
full-time employee of the district, the district shall select the |
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|
engineer or architect as provided by Section 2254.004, Government |
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|
Code. The district's engineer or architect may not serve, alone or |
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|
in combination with another person, as the construction |
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|
manager-agent unless the engineer or architect is hired to serve as |
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|
the construction manager-agent under a separate or concurrent |
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|
procurement conducted in accordance with this subchapter. This |
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|
subsection does not prohibit the district's engineer or architect |
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|
from providing customary construction phase services under the |
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|
engineer's or architect's original professional service agreement |
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|
in accordance with applicable laws. |
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|
(e) A district contracting with a construction |
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|
manager-agent shall procure, in accordance with applicable law, and |
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|
in any manner authorized by this chapter, a general contractor, |
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|
trade contractors, or subcontractors who: |
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|
(1) will serve as the prime contractor for their |
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|
specific portion of the work; and |
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|
(2) will provide performance and payment bonds to the |
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|
district in accordance with applicable law. |
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SECTION 8. (a) A person is not required to obtain a |
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|
certificate of registration under Chapter 1306, Occupations Code, |
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|
as added by this Act, until January 1, 2010. |
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|
(b) Notwithstanding Subsection (a) of this section, a |
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|
person who is engaged in the practice of construction and program |
|
|
management before January 1, 2010, and who applies for a |
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|
certificate of registration under Chapter 1306, Occupations Code, |
|
|
as added by this Act, before that date may continue to engage in |
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|
that practice until the executive director of the Texas Department |
|
|
of Licensing and Regulation acts on the person's application. |
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|
SECTION 9. This Act takes effect immediately if it receives |
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|
a vote of two-thirds of all the members elected to each house, as |
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|
provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |